"Just gives me the creeps"

Volokh, Eugene VOLOKH at mail.law.ucla.edu
Mon Oct 21 10:27:24 PDT 2002

        Jack makes some interesting points about constitutional law proper,
but I wonder how we evaluate assertions such as "Frankly, the man [President
Bush] just gives me the creeps.  I don't trust him one bit, and despite his
often bland rhetoric of inclusion and consultation, I think that he likes
bullying and overpowering people and cutting his opponents off at the knees.
He is a very dangerous man, and we should not be giving him any more power
than he has already seized."  Obviously such arguments are made -- loudly or
quietly -- in political debate all the time; but I wonder to what extent
they can work as arguments about what constitutional law should be.

        Put it another way:  Say that in 1995 a similar argument were made
on this list (which of course didn't exist at the time) about President
Clinton, in reaction to a proposal that would have given the President (both
Clinton and future presidents) more power at the expense of the Congress.
How would we have / should we have reacted to it?  Does it matter whether
the argument is made as an example -- "We should not be giving Presidents
any more power than they already have, because some of them will be people
whom we might not trust with the power, see, e.g., the President we have
today" -- as opposed to a specific point focused on this specific President
-- "we should not be giving *him* any more power than he has already seized,
because *he* is a very dangerous man"?


> -----Original Message-----
> From: Jack Balkin [mailto:jack.balkin at YALE.EDU]
> Sent: Monday, October 21, 2002 2:27 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Confirmation logjam or partisan entrenchment?
>         Here's what I find objectionable about John Eastman's
> recent proposal in the Wall Street Journal to give the
> President the power to appoint lower federal judges if the
> Senate won't vote on his appointments:  It undermines the
> system of checks and balances.  It gives a narrow ideological
> faction the power to control the Constitution's meaning.
> Finally, it concentrates even more power in a President who
> has shown himself to be particularly tempted to act
> unilaterally and without accountability to anyone else.
>         For the last two decades at least, the right wing of
> the Republican Party has been engaged in an energetic crusade
> to "take back the Constitution."  Why the Court needed to be
> taken back given that the Democrats haven't controlled it
> since 1970, I'll never know, but the idea basically is that
> remnants of Warren Court liberalism still stink in the
> crevices of much of contemporary constitutional doctrine. As
> the Republican Party moved to the right during the 1970's and
> 1980's, the federal courts became an important ideological
> target for the party's right-wing.  They hoped to entrench
> their ideological allies in the judiciary and change the
> Constitution through Article III interpretation, a process
> that Sandy Levinson and I have called "partisan
> entrenchment."  (See our 87 U. Va. piece; also see Howard
> Gillman's excellent recent piece in APSR describing the
> history of partisan entrenchment efforts by the G.O.P. after
> the Civil War.).
>         Especially after the Bork hearings (and in part
> because of them), the Republicans have been more willing to
> play hardball than the Dems when it comes to judicial
> appointments.  (My favorite quote from Senator Hatch during
> his tenure as head of the Senate Judiciary committee: "No liberals.")
>         The Republicans were furious that Bill Clinton won
> the White House twice, especially the second time.  They
> believed that the Presidency was rightly theirs.  They
> successfully used their control of the Supreme Court to help
> secure the Presidency in the 2000 Election.  By January 2001,
> the now controlled all three branches of government, or what
> I like to call the "constitutional trifecta."  The takeover
> of the federal judiciary was in their grasp.
>         The problem was that the Republicans forgot one
> thing.  Although they technically controlled all three
> branches, they actually didn't have the support of an
> sizeable majority of the American public to go with it.
> Indeed, they didn't win the popular vote in the Presidential
> election, and their control of the two Houses of Congress was
> razor thin.  This caused a tension between rulers and ruled
> that would eventually have to be resolved.  By pushing (or
> threatening to push) a hard right agenda-- particularly on
> social issues and judicial appointments-- they made it much
> easier for a Republican senator from a northeastern state to
> defect.  The northeastern wing of the Republican Party is
> sort of a dinosaur-- a holdover from the time before the more
> conservative Republicans of the South and West effectively
> took over the party apparatus.  Not surprisingly, Jeffords
> defected, putting an end to the constitutional trifecta, and
> restoring divided government.  My point is that this was not
> a surprise.  When there is no branch of government
> representing over half of the nation's voters, something's
> got to give.
>         The Democrats were no dummies. They knew what Hatch
> had done when Clinton was in power, and they knew what the
> Republican game plan was: partisan entrenchment in the
> federal judiciary. So they have done the logical thing.  They
> have stonewalled on judicial appointments.  (In, fact, they
> probably should stonewall even more, given the 2000 election,
> but that's another story.).  My point is that they have a
> perfect right to do so.  They know that the judicial
> appointments- even at the lower court
> level-- will entrench hard right Republican ideology in the
> interpretation of our Constitution for twenty to thirty
> years.  They have their own views about what the Constitution
> means, and they think that the Constitution is worth fighting
> for.  So they are fighting back.  And good for them!
>         The Republicans can win back the trifecta if they win
> the Senate.  There will still be a disjunct between rulers
> and ruled, (that is, unless another northeastern Republican
> like Chafee deserts the party and no Southern Democrat
> changes sides in response).  But that too, can be changed in
> the next election.
>         The problem with John's proposal is that it hands
> over to a party with a strong ideological agenda that a
> majority of Americans do not share (I mean that a majority
> are not hard-right wingers), and that has not demonstrated
> significant majority approval, the right to remake the
> Constitution of the United States in its own image.  It hands
> over to the President- who has, I am afraid, shown a marked
> tendency toward unilateralism and authoritarianism- the right
> to roll over the only institution in our Government that
> comes even close to representing the popular majority of
> Americans who voted *against him* in the 2000 Election.
> Giving Bush unilateral power to appoint lower federal court
> judges is perhaps not as dangerous as giving him unilateral
> power to make war and cause death and destruction (don't get
> me started on that one), but it's pretty damn scary to a lot
> of people in this country.
>         The point is, that you shouldn't change
> constitutional structures that are designed to keep a faction
> (and that's what I regard the right wing of the Republican
> party as- a faction) from running roughshod over the rest of
> the country and entrenching its political predilections in
> the U.S. Constitution for a generation to come.  If a party
> can repeatedly gain popular support over time, it has the
> right to stock its ideological allies in the courts.  That's
> how the Constitution changes over time.  But John's proposal
> short circuits the arduous task of demonstrating that your
> views of the Constitution really are more than just the views
> of a narrow ideological faction.
> * * * * *
>         There is a broader constitutional issue at stake
> here, and I guess this is as good a place as any to mention
> it. I'm increasingly worried that the hard right wing of the
> Republican party is unwilling to play by the rules- that it
> knows that it is right and will do what it takes to gain
> power and push its views forward through manipulation of
> constitutional structures and constitutional arguments.  I
> saw it in the Clinton impeachment.  I saw it in the fight
> over the 2000 election, and I'm seeing it today in the
> creeping authoritarianism of the Bush administration.  I
> don't think it's wise to concentrate any more power in this
> President.  Frankly, the man just gives me the creeps.  I
> don't trust him one bit, and despite his often bland rhetoric
> of inclusion and consultation, I think that he likes bullying
> and overpowering people and cutting his opponents off at the
> knees.  He is a very dangerous man, and we should not be
> giving him any more power than he has already seized.
> Jack Balkin
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